2018 QCCQ 7526, 2018 QCCQ 7526

Moshe c. 9175-7633 Québec Inc. (KA Autos) 2018 QCCQ 7526 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-701173-173 DATE: September 24, 2018 ______________________________________________________________________ BY THE HONOURABLE ARMANDO AZNAR, J.C.Q. ______________________________________________________________________ ZVIONOW MOSHE Plaintiff v. 9175-7633 QUÉBEC INC. d.b.u.n .

KA AUTOS and KA AUTOS Defendants ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Plaintiff claims from Defendants an amount of 4 280 $ in reimbursement of the cost of the repairs incurred by him regarding an automobile that he purchased on October 17, 2016. [ 2 ] Defendants contest Plaintiff’s claim alleging principally that :

a) Plaintiff purchased the automobile without having it inspected before the sale even if this inspection was recommended and offered to him ;

b) Plaintiff was advised that certain repairs had to be performed to the automobile in relation to the motor, the brakes, the radiator and the transmission and that such repairs were mentioned on the purchase contract (Exhibit P-1) ;

c) In view of the existence of the above-mentioned mechanical deficiencies, a reduction in price of 1 700 $ was given to Plaintiff as can be seen on the contract ;

d) Plaintiff had the repairs performed by a third party without giving Defendants proper prior notice. [ 3 ] Furthermore, alleging that Plaintiff’s demand is abusive and manifestly ill-founded, by way of cross-demand, Defendants claim 2 500 $ in damages. [ 4 ] From the evidence adduced at trial, the Court retains, amongst other facts, the following. [ 5 ] On or about October 17, 2016, while perusing the internet, Plaintiff saw that Defendants were selling a used car namely a Mercedes 2008 ML320 with 226 900 km.

As he urgently needed to purchase a car to go on a family trip to Toronto, he went to Defendants’ dealership to examine the car. [ 6 ] After discussion with the sales employee acting for Defendants, the sale was agreed to for a price of 12 950 $ as stated in the sale contract (Exhibit P-1). [ 7 ] The contract also states that after having made a test drive, Plaintiff and Defendants agreed to reduce the sale price by the amount of 1 700 $ in relation to future repairs to the radiator, brakes, motor and transmission. [ 8 ] It must be stated that notwithstanding the above, Plaintiff was in such a hurry to go to Toronto that he did not have the car examined by a mechanic of his choice before concluding the sale. [ 9 ] The contract also states that the car needed to be inspected by La Société d’Assurance Automobile du Québec (SAAQ) as it had been previously purchased by Defendants in Saskatchewan. [ 10 ] Finally, the car sale label given to Plaintiff by Defendants’ employee and which was signed by Plaintiff (Exhibit P-6) indicates that none of the warranties provided for by articles 159 and 160 of the Consumer Protection Act are applicable.

[ 11 ] The evidence has revealed that after he purchased the automobile, Plaintiff left for Toronto and after having driven 4 995 km, on October 26, 2016 (nine days after the sale) he had it examined by a C.A.A. mechanic, authorized by the SAAQ. [ 12 ] Following this mechanical examination, the automobile was authorized for use in the Province of Quebec as only “minor deficiencies” were identified.

These deficiencies are listed on the “Certificat de vérifications mécaniques” filed by Plaintiff (Exhibit P-2). [ 13 ] According to Plaintiff’s testimony, after this mechanical verification, he contacted Defendants’ employee in order to have the automobile repaired at no cost for him but to no avail.

This being so, without having formally put Defendants’ on notice to perform the said repairs, he had the automobile repaired by a Mercedes dealer (Silver Star) on November 7, 2016 for a total price of 4 236,25 $ (Exhibit P-4). [ 14 ] As mentioned previously, the automobile purchased by Plaintiff had 226 900 km at the time of the sale and was eight years old. Consequently, none of the warranties provided for by

article 159 Consumer Protection Act are applicable. [ 15 ] In this regard, articles 159 and 160 of the Consumer Protection Act state the following : 159. The sale or long-term lease of a used automobile carries with it a warranty that the automobile will remain in good working order (

a) for a period of six months or 10 000 kilometres, whichever occurs first, in the case of a class A automobile; (

b) for a period of three months or 5 000 kilometres, whichever occurs first, in the case of a class B automobile; (

c) for a period of one month or 1 700 kilometres, whichever occurs first, in the case of a class C automobile. 160. For the application of

section 159, used automobiles are divided into the following classes: (

a) class A automobiles, namely, where not more than two years have elapsed between the date the manufacturer put his automobiles of the same model and of the same model year on the market and the date of the sale or long-term lease contemplated in the said section, provided that the automobile has not covered more than 40,000 kilometres; (

b) class B automobiles, namely, where they are not contemplated in paragraph a and not more than three years have elapsed between the date the manufacturer put his automobiles of the same model and of the same model year on the market and the date of the sale or long-term lease contemplated in the said section, provided that the automobile has not covered more than 60,000 kilometres; (

c) class C automobiles, namely, where they are not contemplated in paragraph a or b and not more than five years have elapsed between the date the manufacturer put his automobiles of the same model and of the same model year on the market and the date of the sale or long-term lease contemplated in the said section, provided that the automobile has not covered more than 80,000 kilometres; (

d) class D automobiles, namely, automobiles not contemplated in any of paragraphs a , b and c . [ 16 ] The Court therefore concludes that Plaintiff cannot rely on the warranties provided for by

article 159 of the Consumer Protection Act to support his claim against Defendants. [ 17 ] Furthermore, in the present case, no evidence was adduced at trial establishing that the automobile sold to Plaintiff by Defendants was not durable in normal use for a reasonable length of time, having regard to its price, the terms of the contract and the conditions of its use. Consequently, the Court is of the opinion that the warranty provided for by

article 38 of the Consumer Protection Act is of no help to Plaintiff. [ 18 ] In the present matter, the mechanical deficiencies affecting the automobile purchased by Plaintiff are not latent defects within the meaning of

article 1726 C.c.Q. In fact, these deficiencies were apparent as they were identified in the sale contract binding the parties. [ 19 ] Consequently, the legal warranty provided for by

article 1726 C.c.Q. is of no benefit to Plaintiff. [ 20 ] This being said, for discussion purposes, even if the said deficiencies were to be considered latent defects, the evidence has revealed that, contrarily to

article 1739 C.c.Q. , Plaintiff had the automobile repaired by a third party without giving Defendants prior formal notice to proceed to the said repairs. Considering the circumstances of the present case, such an omission is fatal. Consequently, Plaintiff’s action is dismissed. [ 21 ] As concerns Defendants’ cross-demand, as no evidence of malicious intent or abusive proceedings on the part of Plaintiff has been established, the said cross-demand is dismissed.

WHEREFORE FOR THE FOREGOING REASONS THE COURT: DISMISSES Plaintiff’s demand against Defendants with judicial costs in the amount of $150.00 ; DISMISSES Defendants’ cross-demand without judicial costs. __________________________________ ARMANDO AZNAR, J.C.Q.

Date of hearing: September 18, 2018